Immigration update

Labor law information by Saqui & Raimondo

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento for individual responses to questions or concerns regarding any given situation.

IMMIGRATION ISSUES CONTINUE TO PRESENT CHALLENGES FOR EMPLOYERS IN 2008, AND BEYOND

By Michael C. Saqui & Anthony Raimondo

July 30, 2008 - - On February 29, 2008, a federal grand jury returned a six-count felony indictment against five more current IFCO managers. The indictment charges the defendants with engaging in a Conspiracy to Harbor Illegal Aliens, to Encourage and Induce Illegal Aliens, and to Transport of Illegal Aliens.

These indictments are the latest in a series of charges brought against IFCO managers, which began after Immigration and Customs Enforcement (ICE) personnel raided over 40 IFCO plants nationally, arrested seven current and former IFCO managers, and executed search warrants at 9 IFCO facilities, including the Houston headquarters. This occurred on April 19, 2006. The government alleged that nearly all the pallet workers and foreman ICE encountered were illegal aliens.

In 2007, seven current and former IFCO managers pleaded guilty to felony and misdemeanor charges related to unlawful employment of illegal aliens, and await sentencing on those charges.

The latest indictments appear to be based largely on e-mail correspondence between the previously convicted managers and their superiors. Two senior IFCO managers, and 2 other managers and a foreman were indicted on charges that, if convictions result, carry prison terms of up to 10 years, and fines of $25,000.

IFCO adamantly denied the allegations. A statement issued by IFCO on February 29, 2008, read in part, “We note that all of the alleged conduct pre-dates the government enforcement action of April 19, 2006 . . . IFCO did not set out as a matter of corporate strategy to hire undocumented workers or to exploit any of our employees . . . The government’s allegations regarding certain events that occurred with these individual employees were not part of a company-wide plan, scheme or practice to violate United States Immigration laws.”

The statement also read in part, “Over the past 22 months, IFCO has cooperated fully with the authorities, and has taken a number of steps to ensure that it is doing everything it can to strengthen and standardize employment procedures throughout the company’s 67 locations across the nation.”

Several of those steps include:

1. Enrollment in “E-Verify, within days of the ICE action.”

2. Standardizing new hire procedures.

3. Hired a Vice President to ensure corporate compliance, who developed an enhanced compliance program that the company implemented last year.

4. Hiring additional human resources managers, payroll employees, and an internal auditor to conduct enhanced immigration compliance activities.

IFCO did not have these procedures in place before the 2006 raid, and had to react to procedures and protocols found not to be in compliance by ICE.

There has been no word on the status of the five managers since the indictments were handed down in February. Needless to say, IFCO is still reacting to the raid conducted on their facilities in 2006.

Counsel to Management:

Do not wait until you are raided by ICE to determine if your “I-9” protocols are in compliance. Be proactive, and not reactive, as was the case with IFCO. Until Congress acts to solve the immigration problem, employers will face the risk of enforcement. Employers should monitor this area closely, because there are a number of changes in play, including an ongoing legal challenge and rewrite of the Social Security Safe Harbor regulation. States are beginning to pass laws as well, such as the Arizona employer sanctions law, which can bar employers who knowingly employ undocumented aliens from doing business in Arizona. Court challenges are in the works in many cases, but things can change very quickly. Visit www.srlaborlaw.com for immigration compliance protocols that can help your business.